Document Type

Article

Comments

William & Mary Law Review, Vol. 54, No. 2, forthcoming Nov. 2012.

Abstract

This article begins by asking what constitutional provision is violated by the enforcement of law without a lawmaker. Taking a positivist view—i.e., that law does not exist without a lawmaker—it concludes that the problem of law without a lawmaker collapses into the problem of coercion without law. Coercion without law violates the Due Process Clause in an obvious way: it is deprivation of something “without … law.” The article then explores the existence of this form of substantive due process in American law, arguing that we find it in three somewhat surprising places: Lochner-era substantive due process; modern federalism cases like Morrison, Lopez, and Bond; and Erie itself. Erie’s constitutional source, it concludes, is the Due Process Clause.

Date of Authorship for this Version

2-29-2012

Keywords

Constitutional law, coercion, substantive due process of law, Lochner, federalism, Erie v. Tompkins, federal common law, overbreadth, third-party standing, states’ rights